Meghraj Kothari Vs. Delimitation
Commission & Ors [1966] INSC 173 (20 September 1966)
20/09/1966 MITTER, G.K.
MITTER, G.K.
RAO, K. SUBBA (CJ) HIDAYATULLAH, M.
SIKRI, S.M.
SHELAT, J.M.
CITATION: 1967 AIR 669 1967 SCR (1) 400
ACT:
Constitution of India, 1950, Arts. 82, 327,
328 and 329Order under s. 9 of the Delimitation Commission Act, 1962published
under S. 10(1) -Whether law under Art. 327Therefore whether can be questioned in
a court or whether Art. 329 applies.
Delimination Commission Act, 1967ss. 8, 9 and
10-Scope of.
HEADNOTE:
By a notification of the Delimitation
Commission dated July 24, 1964 issued in terms of s. 10(1) of the Delimitation Commission
Act, 1962, Ujjain City, which had been a general constituency, was notified as
reserved for the Scheduled Castes.
The appellant who was a resident of Ujjain
and a citizen of India, Mad a petition under Art. 226 praying for a writ of
certiorari for quashing the notification on the ground that he had a right to
be candidate for parliament from the Ujjain City constituency which had been
taken away. The petition was rejected-by the High Court on the short ground
that the notification could not be questioned in any court because under Art.
329(a) of the Constitution the validity of any law relating to the delimitation
of constituencies or the allotment of seats to such constituencies, made or
purporting to be made under Art. 327 or Art. 328, could not be called in
question in any court.
In appeal to this Court it was contended on
behalf of the appellant that the impugned notification, which was an order
under s. 9 and published in accordance with the provisions of s. 10(1) of the
Act, was not a law within the meaning of s. 329; that in any event under s.
10(2) such an order was to have the force of law but was not itself a law; and
that the notification was not made under Art. 327 but Art. 82 of the
Constitution.
HELD : dismissing the appeal, The impugned
notification was a law relating to the delimitation of constituencies or the
allotment of seats to such constituencies made under Art. 327 of the
Constitution.
An examination of ss. 8 and 9 of the Act
showed that the matters therein dealt with were not to be subject to the
scrutiny of any court of law. Section 10(2) clearly demonstrates the intention
of the legislature that the orders under ss. 8 and 9 published under s. 10(1)
were to be treated as law which was not to be questioned in any court.
There was very good reason behind such a
provision. If the orders made under ss. 8 and 9 were not to be treated as
final, the result would be that any voter, if he so wished, could hold up an
election indefinitely by questioning the delimitation of the constituencies
from court to court. [410 B-C, G, H] Although an order under s. 8 or s. 9
published under s. 10(1) is not part of an Act of Parliament, its effect is to
be the same. Section 10(4) puts such an order in the same position as a law
made by the Parliament itself which could only be made by it under Art. 327.
[415 E] 401 Case law referred to.
Article 82 merely envisages that upon the completion
of each census the allocation of seats in the House of the People and the
division of each State into territorial constituencies may have to, be
readjusted. It is Art. 327 which enjoins upon Parliament to make provision by
law from time to time with respect to all matters relating to or in connection
with elections to either House of Parliament, delimitation of constituencies
and all other matters necessary for securing the due constitution of such House
or Houses. [406 C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 843 of 1966.
Appeal by special leave from the judgment and
order dated February 25, 1965 of the Madhya Pradesh High Court in Misc.
petition No. 72 of 1965.
G. N. Dikshit, K. L. More and R. N. Dixit,
for the appellant.
Niren De, Addl. Solicitor-General, R.
Ganapathy layer and R. H. Dhebar and B. R. G. K. Achar, for respondents Nos. 1-4.
S. S. Shukla, for respondent No. 5. The
Judgment of the Court was delivered by Mitter, J. This is an appeal by special
leave from a judgment and order dated February 25, 1965 of the Madhya Pradesh
High Court at Jabalpur in Miscellaneous Petition No. 72 of 1965. The High Court
summarily dismissed the petition under Art. 226 of the Constitution praying for
a writ of certiorari for quashing a notification issued in pursuance of
sub-sec. (1) of S. 10 of the Delimitation Commission Act, 1962 in respect of
the delimitation of certain Parliamentary and Assembly constituencies in the
State of Madhya Pradesh.
The petition was rejected on the short ground
that under Art. 329(a) of the Constitution the said notification could not be
questioned in any court. Article 329-which is relevant for our purpose-reads:
"Notwithstanding anything in this
Constitution (a)the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such constituencies, made or
purporting to be made under article 327 or article 328, shall not be called in
question in any court;" Before us it was contended that the notification
referred to is not law and secondly it was not made under Art. 327 of the
Constitution.
The facts are shortly as follows: The
petitioner is a resident of Ujjain and a citizen of India. He had been a voter
in all the previous general elections and still claims to be a voter in
Daulatganj, Ward No. 5, in the Electoral Roll of Ujjain. He claims 402 to have
a right to contest the election to any Assembly or Parliamentary constituency
in theState of Madhya Pradesh.
The impugned notification which was published
in the Gazette of India Extraordinary on July 24, 1964 shows Ujjain as a
Constituency reserved for the scheduled castes...It was made in pursuance of
sub-s. (1) to s. 10 of the Delimitation Commission Act, 1962 and recites that
proposals of the Delimitation Commission for the delimitation of Parliamentary
and Assembly constituencies in the State of Madhya Pradesh had been published
on October 15, 1963 in the Gazette of India and in the official gazette of the
State of Madhya Pradesh and that after considering all objections and
suggestions the Commission determined that the territorial constituencies into
which the State of Madhya Pradesh shall be divided for the purpose of elections
to the House of the People and the extent of each such constituency shall be as
shown in Table.A.
Respondent No. 1 to the petition was the Delimitation
Commission, respondent No. 2 was its Chairman and respondents Nos. 3 and 4 were
its members. The petition alleges many acts of omission and commission on the
part of the Commission and its Chairman, but we are not here concerned with all
that. If we come to the conclusion that the High Court was not justified in
rejecting the petition on the short ground noted above, we shall have to send
the case back to the High Court for trial on merits. According to the
petitioner, Ujjain city has been from the inception of the Constitution of
India a general constituency and by the fact of the city being converted into a
reserved constituency his right to be a candidate for Parliament from this
constituency has been taken away.
In order to appreciate the working of the
Delimitation Commission and the purpose which it serves reference must be made
to the following Articles of the Constitution. Article 82 provides that"Upon
the completion of each census, the allocation of seats in the House of the
People to the States and the division of each State into territorial
constituencies shall be readjusted by such authority and in such manner as
Parliament may by law determine:
Provided that such readjustment shall not
affect representation in the House of the People until the dissolution of the
then existing House." This Article is a verbatim copy of clause (3) of
Art. 81 of the Constitution before its amendment in 1956.
403 Article 327 of the Constitution provides
that'Subject to the provisions of this Constitution, Parliament may from time
to time by law make provision with respect to all matters relating to, or in
connection with, elections to either House of Parliament or to the -House or
either House of the Legislature of a State including the preparation of
electoral rolls, the delimitation of constituencies and all other matters
necessary for securing the due constitution of such House or Houses." It
was argued before us that the Delimitation Commission Act, 1962, was not passed
by Parliament under Art. 327, but under Art. 82 and as such courts of law are
not precluded from entertaining the question as to the validity of a
notification under the Delimitation Commission Act because of the opening
words of Art. 329. Article'82, however, merely envisages that upon the
completion of each census the allocation of seats in the House of the People
and the division of each State' into territorial constituencies may have to be
readjusted. It is Art. 327 which enjoins upon Parliament to make provision by
law from time to time with respect to all matters relating to or in connection
with elections to either House of Parliament .... delimitation of
constituencies and all other matters necessary for securing the due
constitution of such House or Houses.
The preamble to the Delimitation Commission
Act 1962 shows that it is an Act to provide for the readjustment of the
allocation of seats in the House of the People to the States, the total number
of seats in the Legislative Assembly of each State, the division of each State
into territorial constituencies for elections to the House of the People and
Legislative Assemblies of the States and for matters connected therewith
Article 82 only foreshadows that readjustment may be necessary upon completion
of each census, but Art' 327 gives power to Parliament to make elaborate
provision for such readjustment including delimitation of constituencies and
all other matters connected therewith as also elections to either House of
Parliament. Section 3 of the Delimitation Commission Act (hereinafter referred
to the Act) enjoins upon the Central Government to constitute a Commission to
be called the Delimitation Commission as soon as may be after the commencement
of the Act. Section 4 of the Act provides that it is the duty of the Commission
to readjust on the basis of the latest census figures -the allocation of seats
in the House of the People to the several -States...... and the division of
each State into territorial, constituencies for the purpose of elections to the
House of the People.
Section 8 of the Act makes it obligatory on
the Commission to ,'determine by order, on the basis of the latest census
figures, and -.having regard to the provisions of Arts. 81, 170, 330 and 332,
the 404 number of seats in the House of the People to be allocated to each
State and the number of seats, if any, to be reserved for the Scheduled Castes
and for the Scheduled Tribes of the State as also the total number of seats to
be assigned to the Legislative Assembly of each State and the number of seats,
if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of
the State. The delimitation of the constituencies is provided for in s. 9,
sub-s. (1) of the Act which reads:"The Commission shall, in the manner
herein provided, then distribute the seats in the House of the People allocated
to each State and the seats assigned to the Legislative Assembly of each State
to single-member territorial constituencies and delimit them on the basis of
the latest census figures, having regard to the provisions of the Constitution
and to the following provisions, namely:
(a) all constituencies shall, as far as
practicable, be geographically compact areas, and in delimiting them regard
shall be had to physical features, existing boundaries of administrative units,
facilities of communication and public convenience;
(b) every assembly constituency shall be so
delimited as to fall wholly within one parliamentary constituency;
(c) constituencies in which seats are
reserved for the Scheduled Castes shall be distributed in different parts of
the State and located, as far as practicable, in those areas where the
proportion of their population to the total is comparatively large; and (d)
constituencies in which seats are reserved for the scheduled Tribes shall, as
far as practicable, be located in areas where the proportion of their
population to the total is the largest." Under sub-s.(2) of the section
the Commission shall publish its proposals for the delimitation of the constituencies
together with the dissenting proposals, if any, of an associate member, specify
a date on or after which the proposals will be further considered and consider
all objections and suggestions which may have been received by it before the
day so specified. Thereafter its duty is by one or more orders to determine the
delimitation of Parliamentary constituencies and the delimitation of assembly
constituencies of each State. Publicity is to be given to the orders of the
Commission under s. 10(1) of the Act.
Sub-section (1) prescribes that each of its
orders made under s. 8 or s. 9 is to be published in the Gazette of India and
the official gazettes of the States concerned. Sub-section (3) provides that as
soon as may be after such publication every such order shall be laid before the
House of the People and the Legislative Assemblies of the States concerned.
The legal effect of the orders is given in
sub-ss. (2) and (4) of' s. 10 of the Act. Under sub-s. (2) "upon
publication in the Gazette of India, every such order shall have the force of
law and shall not be called in question in any court". Under sub-s. (4)
(omitting the irrelevant portion) the readjustment of representation of the
several territorial constituencies in the House of the People or in the
Legislative Assembly of a State and the delimitation of those constituencies
provided for in any such order shall apply in relation to every election to the
House or to the Assembly, as the case may be, held after the publication in the
Gazette of India of that order and shall so apply in supersession of the
provisions relating to such representation and delimitation contained in the
Representation of the People Act, 1950, and the Delimitation of' Parliamentary
and Assembly Constituencies Order, 1961.
It will be noted from the above that it was
the intention of the, legislature that every order under ss. 8 and 9 after
publication is to have the force of law' and not to be made the subject matter
of controversy in any court. In other words, Parliament by enacting s. 10(2)
wanted to make it clear that orders passed under ss. 8 and 9 were to be treated
as having the binding force of law and not mere administrative directions. This
is further reinforced by sub-s of s.10 according to which the readjustment of
representations of the several territorial constituencies in the House of the
People and the delimitation of those constituencies provided for in any such
order (i.e. under s.
8 or s. 9) was to apply in relation to every
election to the House held after the publication of the order in the Gazette of
India and these provisions contained in the order were to supersede all
provisions relating to such representation and delimitation contained in the
Representation of the People Act,, 1950 and the Delimitation of Parliamentary
and Assembly Constituencies Order, 1961. In effect, this means the complete
effacement of all provisions of this nature which were in force before the
passing of the orders under ss. 8 and 9 and only such orders were to hold the field.
Therefore although the impugned notification
was not a statute passed by Parliament, it was a law relating to the
delimitation of constituencies or the allotment of seats to such constituencies
made under Art. 327 of the Constitution.
Our attention was drawn to Bill No. 98 or
1962 for providing; for readjustment of allocation of seats in the House of the
People to the States, the total number of seats in the Legislative Assembly of
each State, the division of each State into territorial constituencies for
elections to the House of the People and Legislative 406 Assemblies of the
States and for matters connected therewith and the statement of objects and
reasons there for as appearing in the Gazette of India Extraordinary, Part II,
Section 2 of the year 1962 which mentions Arts. 82 and 170(3) of the Constitution
The said statement further shows that as the 1961 census, had been completed a
readjustment of the several matters earlier mentioned was necessary inasmuch as
there had been a change in the population figures from the 1951 census. This,
however, does not mean that the Delimitation Commission Act was a law made
under Art. 82. Article 82, as already noted, merely envisaged that readjustment
might be necessary after each census and that the same should be effected by
Parliament as it may deem fit, but it is Art. 327 which casts a duty on
Parliament specifically to make provision with respect to all matters relating
to or in connection with elections to either House of Parliament etc. the
delimitation of constituencies and all other necessary matters for securing the
due constitution of such House or Houses.
With regard to s. 10 (2) of the Act it was
argued by counsel for the appellant that the order under s. 9 was to have the
force of law, but such order was not itself a law. To support this contention
our attention was drawn to a judgment of the Supreme .,Court of Canada in His
Majesty the King v. William Singer(1). There sub-s. (2) of s. 3 of the War
Measures Act of 1914 provided, that all orders and regulations made under this
section shall have the force of law and shall be enforced in such manner and by
such courts, officers and authorities as the Governor-in-Council may person be
and may be varied, extended or revoked by any subsequent order or regulation.
By s. 4 of the Act the Governor in-Council was empowered to prescribe the
penalties that may be imposed for violating the orders and regulations under
this, Act and also to prescribe whether such penalties shall be imposed upon
summary conviction or upon indictment.
Purporting to act under the provisions of the
War Measures Act the Governor in-Council made an order to the effect that no
retail druggist shall sell or supply straight, Codeine, whether in powder,
tablet or liquid form, or preparations containing any quantity of any of the
narcotic drugs mentioned in Parts 1 and 11 of the Schedule to the Opium and
Narcotic Drug Act, mixed with medicinal or other ingredients, except upon the
written order or prescription therefor signed and dated by a physician,
veterinary surgeon or dentist. .... . The order further provided that any
person found in possession of Codeine or preparation containing narcotic drugs
mentioned in Parts 1 and 11 of the Schedule to the Opium and Narcotic Drug Act
mixed with other medicinal or other in gradients, save and except under the
authority of a licence from the Minister of Pensions and National Health shall
be liable to the penalties provided upon (1) [1941] Canada Law Reports, 111.
407 Summary convictions under the provisions
of S. 4 of the Opium, and Narcotic Drug Act.
The opinion and narcotic Drug Act which was a
Dominion' statute contained a schedule wherein narcotic drugs were enumerated,
but which up to the date of the order in question did not contain Codeine.
Under the provisions of that order a charge was laid against the respondent, a
retail,druggist, that he did without lawful. excuse disobey an Act of the
Parliament of Canada for which no. penalty or other mode of punishment was
expressly provided,. to wit;
Paragraph two of regulations dated 11th day
of September, 1939, of the War Measures Act, by wilfully selling Codeine, a
narcotic drug mentioned in Part Two of the Schedule to the Opium and Narcotic
Drug Act without first having had and obtained a written order or prescription
therefor signed and dated by a physician, contrary to sec. 164, Criminal Code
of Canada. Section 164 of the Criminal Code enacted specifically that the
offence must consist in wilfully doing any act which was forbidden or omitting
to do any act which was, required to be done by an Act of the Parliament of
Canada. In his judgment Rinfret, J.. observed: (page 114):"It is an Act of
the Parliament of Canada which the guilty person must have disobeyed without
lawful excuse." His Lordship agreed with the Trial Judge and with the
majority of the Court of Appeal that in the premises S. 164 of the Criminal'
Code had no application and said:"Of course, the War Measures Act enacts
that the orders and regulations made under it "shall have the force of
law. It cannot be otherwise. They are made to be obeyed and,.
as a consequence, they must have the force of
law. But that is quite a different thing from saying that they will be deemed
to be an Act of Parliament." Taschereau, J. put the matter rather tersely
(see at p.
124):"An order in Council is passed by
the Executive Council, and an Act of Parliament is enacted by the House of
Commons and by the Senate of Canada. Both are entirely different, and unless
there is a provision in the law stating that the Orders in Council shall be
considered as forming part of the law itself, or that any offence against the
regulations shall be a violation of the Act, it cannot be said that the
violation of an Order in Council is a violation of an Act of Parliament within
the meaning of section 164 of the Criminal Code." The observations from
the judgment of Taschereau, J. point out he difference between something which
has the force of law as.
408 distinguished from an Act of Parliament
itself. The Order in ,Council in the Canadian case, although it had the force
of law, was not a provision contained in an Act of Parliament and therefore
although there was a violation of the Order in Council there -was no violation
of any section of an Act of the Parliament of the Dominion of Canada.
Counsel for the appellant also drew our
attention to the judgment of this Court in Sangram Singh v. Election Tribunal,
Kotah, Bhurey Lal Baya.(1) There the Court had to consider the effect -of s.
105 of the Representation of the People Act, 1951 (Act XLIII -of 1951) which
provided that "every Order of the Tribunal made under this Act shall be
final and conclusive". The contention there put forward was that this provision
put an order of the Tribunal beyond question either by the High Court under
Art. 226 of the Constitution or by the Supreme Court in appeal therefrom.
It Was further submitted that the intention
of the Legislature was that the decisions of the Tribunals were to be final on
all matters -whether of fact or of law, are they could not be said to commit an
error of law when acting within the ambit of their jurisdiction. -They decided
what the law was. This submission was turned ,down by this Court and it was
observed after referring to Hari Vishnu v. Ahmed Ishaque(2) that" the
Court laid down in general terms that the jurisdiction under Art. 226 having
been conferred by the Constitution, limitations cannot be placed on it, except
by the Constitution itself." In this case we are not faced with that
difficulty because the ,Constitution itself Provides under Art. 329(a) that any
law relating to the delimitation of constituencies etc. made or purporting to
be made under Art. 327 shall not be called in question in any court. 'Therefore
an order under s. 8 or 9 and published under s. 10(1) would not be saved merely
because of the use of the expression " shall not be called in question in
any court". But if by the publication of the order in the Gazette of India
it is to be treated as law made under Art. 327, Art. 329 would prevent any
investigation by any court of law.
In dismissing the petition under Art. 226 of
the Constitution the High Court of Madhya Pradesh relied exclusively on the
decision of this Court in N.P. Punnuswami v. Returning Officer, Namakkal
Constituency and others(3) which proceeded on the basis of certain ,concessions
made.
There the appellant was a person who had
filed a nomination paper for election to the Madras Legislative Assembly from
the Namakkal constituency which was rejected. 'The appellant thereupon moved
the High Court under Art. 226 (1) [1955] 2 S.C.R. p. 1 at pp. 6 and 7. (2)
[1955] 1 S.C.R.
1104.
(3) [1952] S.C.R. 218.
409 of the Constitution praying for a writ of
certiorai to quash the order of the Returning Officer rejecting his nomination
paper and to direct the said officer to include his name in the list of valid
nominations to be published. The High Court dismissed the application on the
ground that it had no jurisdiction to interfere with the order of the Returning
Officer by reason of Art. 329 (b) of the Constitution. The Court pointed out
(at p. 225):"A notable difference in the language used in Arts. 327 and
328 on the one hand, and Art.
329 on the other, is that while the first two
articles begin with the words "subject to the provisions of this
Constitution", the last article begins with the words
"notwithstanding anything in this Constitution". It was conceded at
the Bar that the effect of this difference in language is that whereas any law
made by Parliament under Art. 327, or by the State Legislatures under Art. 328,
cannot exclude the jurisdiction of the High Court under Art. 226 of the
Constitution, that jurisdiction is excluded in regard to matters provided for
in Art. 329." Reference was also made by counsel to certain other
concessions which appear at pp. 233 and 237 of the report.
It will be noted, however, that the decision
in that case did not proceed on the concessions made. The Court examined at
some length the scheme of Part XV of the Constitution and the Representation of
the People Act, 1951 which was passed by the Parliament under Art. 327 of the
Constitution to make detailed provision in regard to all matters and all stages
connected with elections to the various Legislatures in the country. It was
there argued that since the Representation of the People Act was enacted
subject to the provisions of the Constitution, it could not bar the
jurisdiction of the High Court to issue writs under Art. 226 of the
Constitution. This was turned down by the Court observing:"This argument,
however, is completely shut out by reading the Act along with Art. 329(b).
It will be noticed that the language used in
that Article and in s. 80 of the Act is almost identical, with this difference
only that the Article is preceded by the words "notwithstanding anything
in this Constitution". (p. 232) The Court went on to observe at p. 233:
"It may be pointed out that Art. 329 (b)
must be read as complimentary to lause (a) of that Article Clause (a) bars the
jurisdiction of the courts with regard to such law as may be made under Arts.
327 and 328 relating to the delimitation of constituencies or the allotment of
seats to such constituencies.... If Part XV of the 410 constitution is a code
by itself, i.e., it creates rights and provides for their enforcement by a
special tribunal to the exclusion of all courts including the High Court, there
can be no reason for assuming that the Constitution left one small part of the
election process to be made the subject matter of contest before the High
Courts and thereby upset the time schedule of the elections. The more
reasonable view seems to be that Art. 329 covers all "electoral
matters".
An examination of ss. 8 and 9 of the Act shows
that the matters therein dealt with were not to be subject to the scrutiny of
any court 'of law. Section 8, which deals with the readjustment of the number
of seats, shows that the Commission must proceed on the' basis of the latest
census figures and by order determine having regard to the provisions of Arts.
81, 170, 330 and 332, the number of seats in the House of the People to be
allocated to each State and the number of seats, if any, to be reserved for the
Scheduled Castes and for the Scheduled Tribes of the State. Similarly, it was
the duty of the Commission under s. 9 to distribute the seats in the House of
the People allocated to each State and the seats assigned to the Legislative
Assembly of each State to single member, territorial constituencies and delimit
them on the basis of the latest census figures having regard to the provisions
of the Constitution and to the factors enumerated in cls. (a) to (d) of sub-s.
(1). Sub-section, (2) of s. 9 shows that the work done under sub-s. (1) was not
to be final, but that the Commission (a) had to publish its proposals under
sub-s.
(1) together with the dissenting proposals,
if any, of an associate member, (b) to specify a date after which the proposals
could be further considered by it, (c) to consider, all objections and
suggestions which may have been received before the date so specified, and for
the purpose of such consideration, to hold public sittings at such place or
places as it thought fit' It is only then that the Commission could by one or more
order' determine the delimitation of Parliamentary constituencies as also of
Assembly constituencies of each State.
In our view, therefore, the objection to the
delimitation of constituencies could only be entertained by the Commission
before the date specified. Once the orders made by the Commission under ss. 8
and 9 were published in the Gazette of India and in the official gazettes of
the States concerned, these matters could no longer be reagitated in a court of
law. There seems to be very good 'reason behind such a provision. If the orders
made under ss. 8 and 9 were not to be treated as final, the effect would be
that any voter, if he so wished, could hold up an election indefinitely by
questioning the delimitation of the constituencies from court to court.,
Section 10(2) of the Act clearly demonstrates the intention of the' Legislature
that the orders under ss. 8 and 9 published under 411 s. 10 (1) were to be
treated as law which was not to be questioned in any court.
It is true that an order under s.8 or 9
published under s.10(1) is not part of an Act of Parliament, but its effect is
to be the same.
The situation here bears some comparison with
what obtained in Harishankar Bagla and another v. The State of Madhya
Pradesh.(1)There s. 3 of the Essential Supplies (Temporary Powers) Act, 1946,
provided that the Central Government, so far as it appeared to it to be
necessary or expedient for maintaining or increasing supplies of any essential
commodity, or for securing their equitable distribution and availability at
fair prices, might by order provide for regulating or prohibiting the
production, supply and distribution thereof and trade and commerce therein.
Under s. 4 it was open to the Central Government by notified order to direct
that the power to make orders under s. 3 shall, in relation to Such matters and
subject to such conditions, if any, as may be specified in the direction, be
exercisable also by such officer or authority subordinate to the Central
Government or such State Government or such officer or authority subordinate to
a State Government as may be specified in the direction". Section 6 of the
Act read as follows:"Any order made under s. 3 shall have effect
notwithstanding anything inconsistent therewith contained in any enactment other
than this Act or any instrument having effect by virtue of any enactment other
than this Act." Under powers conferred by s. 3 the Central Government promulgated
on September 10, 1948, Cotton Textiles (Control of Movement) Order, 1948.
Section 3 of the said order provided that no person shall transport or cause to
be transported by rail, road, air, sea or inland navigation any cloth, yarn or
apparel except under and in accordance with a general permit notified in the
Gazette of India by the Textile Commissioner or a special transport permit
issued by the Textile Commissioner. The appellant Harishankar Bagla and his
wife were arrested at Itarsi by the Railway Police for contravention of s. 7 of
the Essential Supplies (Temporary Powers) Act, 1946 read with cl. (3) of the
Cotton Textiles (Control of Movement) Order, 1948 having been found in
possession of new cotton cloth weighing over six maunds which was being taken
by them from Bombay to Kanpur without any permit. The State of Madhya Pradesh
contended before this Court that the judgment of the High Court that s. 6 of
the Act was unconstitutional was not justified. This contention was upheld by
this Court and it was observed:"By enacting s. 6 Parliament itself has
declared that an order made under s. 3 shall have effect notwithstanding any
(1) [1955] S.C.R. 380.
M15Sup CI/67-13 412 inconsistency in this
order with any enactment other than this Act. This is not a declaration made by
the delegate but the Legislature itself has declared its will that way in S. 6
.... The power of the delegate is only to make an order under s. 3 . Once the
delegate has made that order its power is exhausted. Section 6 then steps in
wherein the Parliament has declared that as soon as such an order comes into
being that will have effect notwithstanding any inconsistency therewith
contained in any enactment other than this Act." Similarly it may be said
here that once the Delimitation Commission has made orders under ss. 8 and 9
and they have been published under s. 10(1), the orders are to have the same
effect as if they were law made by Parliament itself.
Reference was also made by counsel for the
respondent to the judgment of this Court in Kailash Nath and another v. State
of U.P. and others.(1) There under s. 4 of the U.P. Sales Tax Act the State
Government was empowered either to exempt certain kinds of transactions from
the payment of sales tax completely, or to allow a rebate of a portion of the
tax payable. In pursuance of that, the Uttar Pradesh Government issued a notification
that with effect from December 1, 1949 the provisions of s. 3 of the Act
(relating to the levy of sales tax) shall not apply to the sales of cotton
cloth or yarn manufactured in Uttar Pradesh, made on or after December 1, 1949
with a view to export such cloth or yarn outside the territories of India on
the condition that the cloth or yarn is actually exported and proof of such
actual export is furnished. It was held by this Court that "this
notification having been made in accordance with the power conferred by the
statute has statutory force and validity and, therefore, the exemption is as if
it is contained in the parent Act itself." In Jayantilal Amrit Lal Shodhan
v. F. N. Rana and others(2) the question for consideration by this Court was the
effect of a notification of the President of India under Art.
258(1) of the Constitution. The President of
India by a notification dated July 24, 1959, under Art. 258(1) of the
Constitution entrusted with the consent of the Government of Bombay to the
Commissioners of Divisions in the State of Bombay the functions of the Central
Government in relation to the acquisition of land for the purposes of the
Union.
Two new States were constituted by the Bombay
Reorganisation Act (XI of 1960) and the Baroda Division was allotted to the
State of Gujarat. In exercise of the powers entrusted by the notification
issued by the President on July 24, 1959, the Commissioner of the Baroda
Division notified under s, 4(1) of the Land Acquisition Act (1 of 1894) the
appellant's land as being needed for a public purpose, A.I.R. 1957 S.C. 790.
(2) [1964] 5 S.C.R. p. 294.
413 and authorised the Special Land
Acquisition Officer, Ahmadabad, to perform the functions of the Collector under
the Act. The Special Acquisition Officer after considering the objections
raised by the appellant submitted this report to the Commissioner who issued a
declaration under s. 6(1) of the Act. The appellant then moved the High Court
of Gujarat under Arts. 226 and 227 of the Constitution for a writ, but his
petition was dismissed. His case inter alia was that the President's
notification under Art. 258 (1) was ineffective after the partition since the
consent of the Government of the newly formed State of Gujarat to the
entrustment of functions to its officer had not been obtained as required by,
Art.258 (1).
Article 258 (1) of the Constitution reads:"Notwithstanding
anything in this Constitution the President may, with the consent of the
Government of a State, entrust either conditionally or unconditionally to that
Government or to its officers functions in relation to any matter to which the
executive power of the Union extends".
One of the contentions put forward before
this Court was that the power exercised by the President was executive in
character and the functions which might be entrusted to a State Government
under Art. 258(1) were executive and as such entrustment of such executive
authority was not law within the meaning of s. 87 of the Bombay Reorganisation
Act which made provisions for maintaining the territorial extent of the laws
even after the appointed day. On this basis, it was argued that the
Commissioners of the new State of Gujarat after May 1, 1960 were incompetent by
virtue of the Presidential notification to exercise the functions of the Union
under the Land Acquisition Act.
It was observed by the majority Judges of
this Court at p. 308:"The question which must be considered is whether the
notification issued by the President is law within the meaning of S. 87 read
with s. 2 (d) of the Bombay Reorganisation Act, 11 of 1960." After
analysing the three stages of the constitutional process leading to the
ultimate exercise of function of the Union Government the Court observed (at p.
309):"By Art. 53 the executive power of the Union is vested in the
President and is exercisable by him either directly or through officers
subordinate to him in accordance with the Constitution and the executive power
of the Union by Art. 73 extends subject to the provisions of the Constitution:
(a) to the matters with respect to which
Parliament has power to make laws; and 414 (b) to the exercise of such rights,
authority and jurisdiction as are exercisable by the Government of India by
virtue of any treaty or agreements:
Provided that -the executive power referred
to in sub-cl. (a) shall not, save as expressly provided in the Constitution or
in any law made by Parliament, extend in any State to matters with respect to
which the Legislature of the State has power to make laws. Prima facie, the
executive power of the Union extends to all matters with respect to which
Parliament has power to make laws and in respect of matters to which the power
of the Parliament extends".
The Court then went on to consider the nature
of the power exercised by the President under Art. 258(1). It noted that by
item 42 List III the subject of acquisition of property fell within the
Concurrent List and the Union Parliament had power to legislate in respect of
acquisition of property for the purposes of the Union and by Art. 73(1)(a) the
executive power of the Union extended to the acquisition of property for the
Union. It was observed that "by Art. 298 of the Constitution the executive
power of the Union extends to the carrying on of any trade or business and to
the acquisition, holding and disposal of property and the making of contracts
for any purposes. The expression "acquisition, holding and disposal of
property" would, in our judgment, include compulsory acquisition of
property. That is a provision in the Constitution which within the meaning of
the proviso to Art.
73(1) expressly provides that the Parliament
may acquire property for the Union and consequently executive power of the
Union in relation to compulsory acquisition of property is saved thereby, power
of the State to acquire land notwithstanding." Reference was made also by
the majority of Judges to the case of Edward Mills Co. Ltd. v. State of
Ajmer(1) where it was held that an order made under s. 94(3) of the Government
of India Act, 1935 was, notwithstanding the repeal of the Government of India
Act, 1935, by Art. 395 of the Constitution, law in force. Finally, it held by
the majority of Judges (p. 315):"We see no distinction in principle
between the notification which was issued by the Governor General in Edward
Mills' case, and the notification with which we are dealing in this case. This
is not to say that every order issued by an executive authority has the force
of law. If the order is purely administrative, or is not issued in exercise of
any statutory authority it may not have the force of law. But where a general
order is issued even by an executive (1) [955] 1 C.S.R. 735.
415 authority which confers power exercisable
under a statute, and which thereby in substance modifies or adds to the
statute, such conferment of powers must be regarded as having the force of
law." In this case it must be held that the order under ss. 8 and 9
published under s. 10 (1) of the Delimitation Commission Act were to make a
complete set of rules which would govern the re-adjustment of number of seats
and the delimitation of constituencies.
In this case the powers given by the Delimitation
Commission Act and the work of the Commission would be wholly nugatory unless
the Commission as a result of its deliberations and public sittings were in a
position to re-adjust the number of seats in the House of the People or the
total number of seats to be assigned to the Legislative Assembly with
reservation for the Scheduled Castes and Scheduled Tribes and the delimitation
of constituencies. It was the will of Parliament that the Commission could by
order publish its proposals which were to be given effect to in the subsequent
election and as such its order as published in the notification of the Gazette
of India or the Gazette of the State was to be treated as law on the subject.
In the instant case the provision of s. 10
(4) of the Act puts orders under ss. 8 and 9 as published under s. 10 (1) in
the same street as a law made by Parliament itself which, as we have already
said, could only be done under Art. 327, and consequently the objection that
the notification was not to be treated as law cannot be given effect to.
In the result the appeal fails and is
dismissed with costs.
R.K.P.S. Appeal dismissed.
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